Writ Petitions Summary (Ashwini Kumar Upadhyay)

Background and Issue

The petitioner is challenging the differing grounds for divorce and maintenance under various personal laws. The petitioner has submitted two writ petitions for divorce and maintenance respectively. They seek gender justice and neutrality through uniformity in personal laws.

 

The challenges fall under Articles 14, 15, 21 and 44 of the Indian Constitution as well as international conventions, primarily the Convention on the Elimination of All forms of Discrimination against Women (CEDAW). The petitioner claims that uniformity in personal laws is the only way to abide by the spirit of Articles 14, 15, 21 and 44.

 

What does the Petitioner Seek?

In both petitions, the petitioner has prayed for –

1. Direction to remove anomalies in the grounds for divorce, maintenance and Alimony and make them uniform to eliminate discrimination based on religion, race, caste, sex or place of birth.

2. Alternatively, the framing of gender-neutral guidelines for divorce maintenance and alimony on account of current ground being discriminatory.

3. Alternatively, direct the Law Commission of India to examine personal laws and suggest Uniform Grounds for divorce, maintenance and alimony.

 

Grounds

Rights-based Arguments

The petitioner in both cases refers to the Supreme Court’s judgement in the Jose Paulo Coutinho Case (2019). The Court here, lambasted the Centre for making no attempts towards introducing and securing a Uniform Civil Code for all the citizens.

 

The petitioner argues that the ongoing distinctions between the way different personal laws deal with divorce, maintenance and alimony are based on patriarchal notions. For this reason the petitioner argues that it contravenes principles of gender justice guaranteed under articles 14, 15 and 21.

 

Specific reference is made to Section 10 of the Indian Divorce Act (1869), Section 13 of the Hindu Marriage Act (1955), Section 27 of the Special Marriage Act (1954), Section 32 of the Parsi Marriage and Divorce Act (1936) and Section 2 of the Dissolution of Muslim Marriages Act (1939).

The petitioner makes reference to NALSA v Union of India and Jeeja Ghosh v Union of India which reinforces the right not to be perceived as unequal or inferior. Reference is also made to the decisions in Joseph Shine v Union of India and Vishakha v State of Rajasthan which render provisions that reinforce gender stereotypes, violative of the constitution under Articles 14, 15 and 21.

 

International Obligations

The petitioner refers to Article 5(a) and 16(a) of the CEDAW. Article 5(a) mandates that States try to modify socio-cultural practices to ensure the elimination of prejudices and practices which are based on hierarchical notions of sex and gender roles. Article 16(a) mandates that States push for equality between men and women in matters relating to family and marriage. It should be noted that the Article specifically states that it speaks of equality between men and women and makes no mention of differing religious personal laws.

 

The petitioner refers to the Vishakha case which held that the legislation and decision making regarding human rights must be informed by international obligations as well. In light of this, seeing as India ratified the CEDAW in 1993, the petitioner states that Articles 14, 15 and 21 take the CEDAW into account and apply it to the Indian context.

 

Indian Civil Code

The petitioner pushes forward the concept of an Indian Civil Code (pari materia to the Uniform Civil Code) in order to guide judicial proceedings with one civil law. The petitioner continues to promote an ICC, arguing it will save the court time when dealing with a case and will promote national integration and unity.